A survey of foreign H-1B visa holders working at tech industry employers like Apple, Lyft and Samsung say they’ve been subjected to a significant degree of workplace discrimination ever since the Trump administration made it tougher to qualify for the visas.
Visa holders say they are assigned to working conditions that dangerous, degrading and often very stressful. Nearly half of visa holders surveyed said they believe they earn less than their co-workers because of their visa status – despite the fact that the U.S. Department of Labor specifically says H-1B visa holders are not to make any less than the prevailing wage set for their role in the area where they work. Technically though, federal law does still authorize employers to misclassify H-1B visa holders as “entry level employees,” so they can earn less. A computer programmer, for example, might earn $40,000 less as an entry-level worker compared to one with experience. Still, that classification defies logic because by definition, H-1B visa holders re supposed to be highly-skilled.
The H-1B visa program allows foreign skilled workers to be brought to the U.S. to work for a limited amount of time. It’s the main way that U.S. companies hire skilled foreign workers. The program, which is already capped at 85,000 employees (less than 1 percent of the U.S. total workforce) has slowed substantially under the current administration’s policy of buying and hiring American. Priority has been given to foreign workers who hold a U.S. higher education degree. This has led to H-1B visa holder workers feeling discriminated against and treated as second-class. Yet workers feel as if they cannot speak up because the H-1B spots are so coveted and their eligibility for the program is specifically tied to employer sponsorship.
More visa applications are being rejected and once-routine renewals in the program are now being treated like new applications, taking months at a time to process.
The largest IT industry group in India has said that Indian workers are disproportionately affected. The president of that group asked to meet with Trump’s delegation on an upcoming trip to India.
The U.S. Department of Justice notes that employers with four or more employees cannot treat individuals differently in hiring, firing, recruitment or referral for a fee based on citizenship status. This is per 8 U.S.C. 1324b(a)(1)(B). Those protected under the law include immigrants, refugees, asylees and recent lawful permanent residents who apply for citizenship within 6 months.
There is also a provision of law the prohibits national origin discrimination. However, it should be noted that some immigration discrimination claims have failed in court because they were wrongly characterized as national origin discrimination. There are procedural differences between the two claims with regard to jurisdiction and administrative oversight agencies, so it’s important that the claim be properly filed.
H-1B visa holders may be seen as an easy target for employers in layoffs and other adverse employment actions because they are relatively vulnerable to deportation, which would result in practical difficulties if the worker tried to seek redress for citizenship discrimination.
Workers who believe they have been experienced this should speak with a dedicated Los Angeles citizenship discrimination attorney.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949-375-4734.
Additional Resources:
Indian IT industry head accuses US of discrimination over worker visas, Feb. 16, 2020, By Benjamin Parker, Financial Times